Education, Law & Principles

AG: Religious charter schools are legal in Oklahoma

December 1, 2022

Ray Carter

In an official legal opinion, Oklahoma Attorney General John O’Connor says a state law that prohibits religious entities from operating a public charter school likely violates the First Amendment to the U.S. Constitution and “therefore should not be enforced,” based on rulings from both the U.S. Supreme Court and the Oklahoma Supreme Court.

Official opinions issued by the attorney general are normally treated as legally binding unless a court declares otherwise.

The opinion opens the door for various religious entities, including churches, to operate public charter schools in Oklahoma. Public charter schools are open to all students, but no child is required to attend a charter school, unlike traditional public schools where attendance may be compulsory based on geographic proximity.

Gov. Kevin Stitt and State Superintendent of Public Instruction-elect Ryan Walters both praised the opinion.

“Attorney General John O’Connor’s opinion rightfully defends parents, education freedom, and religious liberty in Oklahoma,” Stitt said. “Ultimately, government takes a backseat to parents who get to determine the best learning environment for their child.”

“This is the right decision for Oklahomans,” Walters said. “Religious freedom is foundational to our state and students. There’s never a more important decision than to protect one’s religious liberties.”

The potential for greater school-choice options was also hailed by others who have advocated for increased educational opportunity.

“We applaud Attorney General John O’Connor’s opinion that underscores the right of families to access the best educational options for their kids,” Jennifer Carter, senior advisor for the American Federation for Children-Oklahoma, said in a statement. “Today’s AG opinion is entirely in keeping with the spirit of what charter schools are meant to be: free public schools that offer tailored experiences to students in addition to those available in traditional public schools.”

“The Attorney General’s opinion on religious charter schools is a win for parents and students in Oklahoma,” said Archbishop Paul S. Coakley, Archbishop of Oklahoma City; and Bishop David A. Konderla, Bishop of Tulsa, in a joint statement. “We want to thank Governor Stitt, Attorney General O’Connor and all those who have worked to ensure that Oklahoma parents have the opportunity to provide their children with an education that best fits their needs.

“The Catholic Church has a vested interest in the progress and development of education as it forms the next generation of society and provides pathways to human flourishing,” the two Catholic leaders continued. “This opinion will be of great benefit to the disadvantaged youth of our state and will further protect the religious freedom we enjoy. All young people, no matter their economic background, should be provided educational opportunities that form them into well-rounded adults and help them reach their God-given potential.”

Currently, there are approximately 80 charter schools in Oklahoma that serve roughly 80,000 students statewide, including virtual charter school students, representing 11.7 percent of total public-school enrollment.

The opinion, authored by O’Connor and Solicitor General Zach West, was issued in response to a question posed to the Office of the Attorney General by Rebecca L. Wilkinson, the executive director of the Statewide Virtual Charter School Board. Wilkinson asked if her board should continue to enforce the nonsectarian requirements of Oklahoma law in light of recent U.S. Supreme Court rulings.

O’Connor said the board should no longer enforce those provisions.

“In the past five years alone, the U.S. Supreme Court has prevented officials in three States from excluding religious adherents from different types of public benefit programs relating to pre-K, primary, or secondary schools,” O’Connor’s opinion noted.

In Trinity Lutheran Church of Columbia, Inc. v. Comer, the U.S. Supreme Court declared unconstitutional a Missouri policy barring churches from receiving state financial grants to install softer playground surfaces made from recycled tires.

In Espinoza v. Montana Department of Revenue, the U.S. Supreme Court declared unconstitutional Montana’s practice of barring families from using a tax-credit scholarship for attendance at a private religious school.

The U.S. Supreme Court reached a similar conclusion in Carson v. Makin, which dealt with a Maine program providing tuition assistance for parents in rural school districts that lacked a secondary school.

The Oklahoma Charter School Act currently states, “A charter school shall be nonsectarian in its programs, admission policies, employment practices, and all other operations. A sponsor may not authorize a charter school or program that is affiliated with a nonpublic sectarian school or religious institution.”

“We believe, based on the First Amendment and the Trinity Lutheran, Espinoza, and Carson line of decisions, that the U.S. Supreme Court would likely hold these restrictions unconstitutional,” the attorney general’s opinion stated.

The opinion said the provision of state law banning any charter school “that is affiliated with a nonpublic sectarian school or religious institution” is the “most problematic.”

“Under Trinity Lutheran, Espinoza, and Carson, it seems obvious that a state cannot exclude those merely ‘affiliated with’ a religious or sectarian institution from a state created program in which private entities are otherwise generally allowed to participate if they are qualified,” the opinion stated. “And that is exactly what this provision does.”

The attorney general noted that Oklahoma law already allows any qualified “private college or university, private person, or private organization” to establish a charter school.

“And once qualified private entities are invited into the program, Oklahoma cannot disqualify some private persons or organizations ‘solely because they are religious’ or ‘sectarian,’” the attorney general opinion declared. “… Even less so can the State exclude private persons or organizations that are merely ‘affiliated with’ sectarian or religious institutions.”

The opinion goes on to state, “Both approaches evince clear hostility, not neutrality, to religion. Thus, the provision in question is highly likely to be found unconstitutional if the State continues to enforce it.”

O’Connor said the fact that state taxpayer dollars could go to a religious entity is not illegal given multiple court rulings.

“It is not a problem that, under this interpretation, a substantial amount of public funds could be sent to religious organizations or their affiliates,” the attorney general opinion stated. “As the U.S. Supreme Court emphasized in Carson, ‘a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.’ … No student is forced to attend a charter school—it is one option among several for parents. … The Establishment Clause therefore provides no cover for a clear Free Exercise Clause violation here.”

The opinion noted that the Oklahoma Supreme Court has also ruled that a state constitutional restriction on the use of public money for the support of religious entities does not prohibit state funding of programs that allow beneficiaries to choose a religious provider.

In a case regarding the Lindsey Nicole Henry Scholarships for Students with Disabilities Program Act, the Oklahoma Supreme Court ruled in 2016 that the scholarship program was constitutional even though parents could use taxpayer funds to send children to private religious schools.

“When the parents and not the government are the ones determining which private school offers the best learning environment for their child, the circuit between government and religion is broken,” the Oklahoma Supreme Court opinion stated (emphasis in original).

The attorney general’s opinion also noted state law allows public-school districts to enter contracts with private schools, including religious schools, to provide services to children with disabilities. That law has been in place since 1993.

Based on state court rulings, the attorney general’s opinion declared that allowing religiously affiliated participants to provide educational services to children by entering into a written agreement with a charter school “would not violate the Oklahoma Constitution” because “charter schools are entirely optional for parents” and “allowing the religious or religiously affiliated to participate would make the system neutral rather than hostile to religion.”

“The State cannot enlist private organizations to ‘promote a diversity of educational choices,’ … and then decide that any and every kind of religion is the wrong kind of diversity,” the opinion stated. “This is not how the First Amendment works.”